Siman 309

One who hires an animal to lead it to a known place and led it to another place: if the climate of the place where he led it is different from the climate of the place he hired it to go, and it died, or if snakes or other damaging agents are common there and a snake or other damaging agent bit it, he is liable, even if this path is shorter than the path he agreed upon with him. But if the climate is not different there, and damaging agents are not common, and it is not longer than the path he agreed upon with him, he is exempt.

If he agreed with him to lead it on a mountain and he led it in a valley, or vice versa, and it became exhausted and died, he is liable. For when he deviated from a valley to a mountain, we attribute it to the possibility that through the exertion of its ascent upon the mountain it became exhausted; and even if it did not die immediately until it reached the plain, we attribute it to the exertion of the ascent, and had he led it in a valley it would not have become exhausted. And if he deviated from a mountain to a valley, we attribute it to the possibility that if he had led it on the mountain, the air would have dominated it and it would not have become exhausted. All this is specifically when it became exhausted and died, but if it died in its typical manner, he is exempt. And even though its beginning was with negligence, for the deviation is negligence regarding slipping or becoming overheated as will be explained, nevertheless he is exempt; for whenever the accident is not on account of the negligence, he is exempt, as I wrote in siman 291. Furthermore, in a deviation from a mountain to a valley and vice versa, this is not complete negligence, for damages are as common in this as in that, rather the damages are of different types.

One who hires a donkey to lead it on a mountain and led it in a valley, if it slipped he is exempt; even though he transgressed the will of the owners and it was forbidden for him to do so, nevertheless, since the accident that occurred was more likely on the mountain, he is exempt. And if it suffered from heat exhaustion, he is liable, for in a valley there is more heat than on a mountain, and it died due to the change. And if he hired it to lead it in a valley and led it on a mountain, it is the opposite: if it slipped he is liable, for slipperiness is more common on a mountain than in a valley, and if it suffered from heat exhaustion he is exempt, for in a valley there is more heat than on a mountain because of the wind that blows on the mountain peaks. And this is specifically when it did not suffer from heat exhaustion due to the ascent to the mountain, such as when at the time it ascended it was also afterwards for some time not in heat, but when it suffered from heat exhaustion due to the ascent, such as when immediately upon ascending we saw that it suffered from heat exhaustion, he is liable, as I wrote in section 2. And so too in any similar case, such as if he hired it to lead it to one place and led it to another place, and it is known that the air is different there, he is liable as I wrote in section 1, and we hang the reason that it died on the change of air. And if he hired it to lead it in a level place and led it on a mountain and it suffered from heat exhaustion due to the ascent or slipped, and likewise if he led it in a valley and it suffered from heat exhaustion, he is liable; but if it slipped there, he is exempt. And if he hired it to lead it on a mountain and led it in a level place and it slipped, he is exempt, but if it suffered from heat exhaustion he is liable, for on the mountain the wind blows more than in a level place. And if he hired it to lead it in a valley and led it in a level place, he is exempt whether it slipped or whether it suffered from heat exhaustion, for there is no reason to hang this on a level place more than in a valley [it appears to me].

An incident occurred involving one who rented out his animal to travel with it to a certain place, and he told the renter to return it to him the next day. Most people who travel to this place return on the same day, and this renter did so as well, traveling upon it to that place and returning it on the same day. The owner complained to the elders of the city regarding the fact that he led it there and back in one day, as it became weakened from this. The elders said to him that he should receive it and occupy himself with its healing, and he did so, and at the end of eight days it died. The Rosh, of blessed memory, ruled that the renter is liable since he was negligent with it, for presumably the owner knew his animal—that it did not have the capacity to go and return in one day, as written in siman 308, section 3. Even though it did not die immediately but rather after eight days, nevertheless, since he stipulated with him and he deviated, and it became weakened from this and died after some time, there is proof that it died from this. As for the owner receiving it based on the statement of the elders, he did not need to do this, for the renter was obligated to care for it until it recovered. Therefore, the status of the owner is only like a shomer chinam, and he must swear that he was not negligent with it regarding its food and its watering as it required then, and that he did not ride upon it for his own needs during the eight days except to water it, and the renter is liable to pay him.

Our teacher, the Rema, wrote in siman 335: One who hired a horse for eight days to go to a certain place, and after traveling for two days he reconsidered and returned to his place, he may do with the horse whatever he wishes during these six days, such as hiring it out in the city to bring wood or other labors designated for horses in that city, even though this labor is heavier than the first; for it is preferable to him that his animal be in his city performing heavy labor than that it travel to a distant place. Thus far his words. And it appears to me that his intention was in an ordinary case, but if he knows that it is not the will of the lessor to perform heavy labor with his animal, it is forbidden for him to do so. And even in an ordinary case, it is only with labor that is slightly heavier, but with labor that is much heavier, it is forbidden for him to do so. Furthermore, it appears to me that regarding what he permitted to hire it out in the city, this is when the first lessee supervises it, for if not so, a lessee is not permitted to hire out, as I have written in siman 307 and 291.

If one rented out his animal and stipulated with the renter that if it dies he shall be obligated to pay him, and afterwards it died, he is exempt from paying him the rent, for he can say: I did not fix the rent for you except upon its return, and not when I pay you for it, unless he stipulated explicitly that he shall also pay him the rent when it dies [Shach]. And there is no concern of ribbit in this, as was written in Yoreh Deah siman 177. And this requirement for an explicit stipulation is only where he stipulated with him that he should pay him according to its value at the time of the pulling, and it is like a sale from that time, and if so, why should he pay its rent? But in an ordinary rental, when he is obligated to pay him when it dies through his negligence or through that which he deviated with it, he must also pay the rent, for that which it is emaciated due to work is upon the owner, and he only needs to pay according to its value at the time of the negligence, and if it depreciated in value at that time, the loss is the owner's, and therefore he must pay the rent [Netivot HaMishpat].

In the time of the Shas, the custom was that when one wanted to plow his field, he would hire a cow from someone along with the plowing implements, and the owner of the cow would not plow himself but gave them into the hand of the renter. He provided two youths: one holding the goad to direct the cow to its furrows, and the second walking behind the plow and weighing down the stake into the ground, which contains the iron called a kankan in the language of the Mishnah. Sometimes the owner of the cow would provide the youths. Therefore, one who rents a cow to plow in a mountain and plowed in a valley, and the kankan broke, the renter is exempt, for the mountain is harder than a valley, and if he had plowed in the mountain, it certainly would have broken; and the legal claim of the owner of the cow is against the youths. If he rented it to plow in a valley or in level land and plowed in a mountain and the kankan broke, the renter is liable, and the legal claim of the renter is against the youths, for they should have been careful in their work like other mountain-plowers. And some say that this is specifically when the renter hired them, but if the youths are hired by the owner of the cow, they are exempt from the renter even though he deviated, because they can say: "We hired ourselves to the owner of the cow to plow in a valley, and you who deviated, pay." And the owner of the cow must give them their wages. Even when the renter is poor and the owner of the cow has nothing to collect from him, nevertheless he must pay them their hire, and he cannot say: "You were negligent in that you listened to him to plow in the mountain," for they can say: "Since you did not tell us 'plow in the valley,' we thought that we must listen to the voice of the renter; even though we heard that he rented from you to plow in a valley, nevertheless you should have told us to plow in a valley." And this is specifically when he said to them: "Go with the renter to do his work" without specification, but if he said to them: "Go and plow in the valley," he does not need to pay them [so it appears in the Tur].

When the youths are liable to pay, which of them pays? Our sages, of blessed memory, said that it is the one who holds the vessel at the time of plowing, for he deepened it excessively and therefore it broke. And if the field was full of stones and crags, both are liable for the value of the plowshare—the one who leads it with the goad and the one who holds the vessel—because in such a place it is easy for the plowshare to break, and when the animal deviates slightly from the path it will break immediately, and the owner of the goad must also be careful in this. Both are prone to negligence, and we say that it was broken through the force of both of them, unless it is possible to clarify through whose force it was broken, in which case only the one by whose hand it was broken is liable.

If he hired it to thresh legumes and he threshed grain and it slipped, he is exempt, for all the more so would it have slipped with legumes. But if he hired it to thresh grain and he threshed legumes and it slipped, he is liable, because legumes cause slipping. And if the owner of the cow hired a man to thresh the grain of the hirer: if he said to him, "thresh grain," he has lost his wage; but if he said to him to do the work of the hirer without specification, even though he heard that he hired the cow from him to thresh grain, nevertheless he is liable for his wage, as was written regarding the jug.

One who hires a donkey and it becomes lame on the way, and the hirer did not concern himself with this and placed a load upon it and it was ruined, it is negligence, for he should not have placed a load upon it and he should have hired another animal and left the donkey with a trustworthy person and not led it with him, for even the walking is difficult for it. And if he did not find a trustworthy person with whom to leave it, he may lead it to its destination without a load. And this is specifically when he is not so pressed for his journey and it was within his power to hire another animal to place the load upon it, but if he was pressed for his journey and it was not possible to easily obtain another animal, it is not negligence even when he placed the load upon it, and he has permission to do so, for for this purpose he hired the donkey. And such is the law in our country when one hired a wagon with a horse and it was ruined on the way, he should hire another horse at the expense of the owner of the wagon and leave the ruined horse with a trustworthy person until it is healed. And if he does not find a trustworthy person, he shall tie the horse to the side of the wagon and lead it with him. And if it is impossible for him to obtain another horse, such as if he was hurried for his journey, he may travel as it is. And it appears that there is no difference whether the owner of the wagon is traveling with him or not.